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Is Obama really ready to argue for a constitutional right to marriage equality?

Community/Meta Prop 8 trial Supreme Court

By Jacob Combs

Writing in the New Yorker, former Clinton White House advisor Richard Socarides maps out the possibilities for President Obama’s next move on marriage equality, providing an excellent overview of the current legal landscape regarding the cases challenging the Defense of Marriage Act (DOMA) and Proposition 8, both of which will be heard by the Supreme Court this March.  Socarides’s piece persuasively argues his belief that Obama (through the Justice Department) with file a legal brief in the Prop 8 case arguing that gay and lesbian couples have a fundamental right to marriage equality, a move that could reverberate around the country in future legal decisions challenging the laws of the 41 states who do not provide equal marriage rights to same-sex couples.

Socarides writes that Obama’s Justice Department essentially has three arguments it can lay out against Prop 8 should it choose to take sides in the case–which, it is important to not, the DOJ is under no obligation to do, since the federal government is not a party to case challenging California’s marriage laws.  Because the United States is the named defendant in the DOMA case (called U.S. v. Windsor), the Justice Department has weighed in on that law, arguing it is unconstitutional.  In its argument, the DOJ made the case that laws pertaining to gays and lesbians should be considered under a more searching form of judicial review known as heightened scrutiny, not the more deferential rational basis test.  If the Justice Department does decide to weigh in on the Prop 8 case, though, Socarides writes, it has several options.

First, the DOJ can make the limited procedural argument that the proponents of Prop 8–private citizens who worked to get the constitutional amendment on the ballot and asked the district court to defend the law when California’s governor and attorney general did not do so–do not have what’s known as ‘standing’ to present the appeal.  The essential reasoning behind this argument is that the proponents cannot show any specific injury to themselves if Prop 8 is struck down, so they should not have been allowed to defend the law in the first place.

The second argument available to the DOJ would be one based along the lines of the decision of the Ninth Circuit Court of Appeals invalidating Prop 8, which declined to touch upon the idea of a fundamental (i.e., constitutional) right to marriage equality, and instead held (using a rational basis test) that California had violated the U.S. Constitution by rescinding same-sex couples’ right to marry after the state’s Supreme Court had extended that right.

The third argument is the most dramatic, and the one Socarides believes Obama will pursue.  As he puts it, “It would involve the government arguing, as in Windsor, that the heightened-scrutiny test should be applied to Proposition 8, the logical extension of which is a rejection of Prop 8’s marriage restriction, as its only justification is based on the weak rationale of custom or, worse, prejudice.”  Socarides explicitly connects his argument to Obama’s recent second inaugural addresses, in which the president said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law–for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

Unlike Socarides, I am more skeptical that each of these three arguments in the Prop 8 case is truly open to Obama and the Justice Department.  In fact, I would argue that the only argument that administration could realistically pursue would be the third, most sweeping one–making it perhaps less likely that the administration will weigh in on the case at all.

When Attorney General Eric Holder announced in February 2011 that he and the president had determined that DOMA violated the Fifth Amendment’s equal protection clause, he specifically argued that laws that classify based on sexual orientation should be considered by courts under the heightened scrutiny test.  The Justice Department has argued in favor of heightened scrutiny before each court that has considered DOMA since Holder’s announcement, and will certainly do so again before the Supreme Court in March.

If the Justice Department believes the Supreme Court should consider DOMA using heightened scrutiny, then the administration’s position (albeit implicit) is that it should do so with Prop 8 as well.  This makes an argument in the Prop 8 case based on the Ninth Circuit’s ruling more difficult for the administration: it would seem contradictory for the DOJ to argue that Prop 8 should be viewed under heightened scrutiny and then propose a legal argument to the Supreme Court made by a circuit court that explicitly did not rely on a the heightened scrutiny test.  The DOJ could make this argument, but it would likely be seen (correctly) as a trepidatious act of splitting hairs.

It seems just as unlikely that the administration would make an argument based on standing in the Prop 8 case without getting at the core constitutional question of marriage equality.  The standing question is one the Supreme Court alone can resolve because of its lack of specificity in the past regarding the issue.  To put it simply, it does not seem clear to me that the administration has any particular investment in the abstract procedural question of standing that it would want to see promoted before the high court.  Because of that, it would make more sense for the DOJ to simply sit out the Prop 8 case if that were the only aspect of the lawsuit it wanted to weigh in on.

Obama’s most recently enumerated position on marriage equality combines personal support for gay couples’ right to marry and a belief the issue should be decided on a state-by-state basis.  Marriage law has historically been the domain of the states and not the federal government, and Obama has certainly made his views known on equal marriage campaigns specific states, opposing marriage equality bans in North Carolina and Minnesota, endorsing pro-equal marriage ballot initiatives in Maine, Maryland and Washington, and voicing support for the current legislative effort to bring marriage equality to Illinois.  It’s worth noting, too, that then-candidate Obama opposed Prop 8 in 2008, calling it “unnecessary.”

As I see it, the only argument in line with President Obama’s past statements on marriage equality–and the one that makes the most sense from a tactical perspective–would be one supporting a broad, fundamental right to marriage for same-sex couples.  But at the same time, filing a court brief arguing that position strikes me as an unlikely move for President Obama, who has taken a long view on issues like Don’t Ask, Don’t Tell (and, it seems, the Employment Non-Discrimination Act) that can be frustrating to LGBT advocates but has ultimately proved its efficacy.

The American people’s views on marriage equality are shifting with incredible speed.  While Obama will certainly be looked back upon as a president who contributed a great deal towards making equality for gay and lesbian Americans a reality, he probably can perceive that he does not necessarily need to (and, perhaps, nor should he) use the bully pulpit to push the country to consensus on the issue.  Solicitor General Donald Verrilli, Jr. may very well be asked by the Supreme Court justices during oral arguments in the DOMA case what the federal government’s position is on Prop 8.  If that happens, he will probably respond with something along the lines of the third argument laid out by Socarides.  But that answer will come in response to a question from the Court, rather than from a position foisted upon the Court by the federal government.

Obama essentially has two options open to him: sit out the Prop 8 case, while making a historic argument for equality in the DOMA challenge, or go all in by declaring his support for a broad, fundamental right to marriage equality.  I don’t think the latter would be damaging politically for Obama, but I do think it could unnecessarily complicate the marriage debate.  You don’t build a dam to change the course of a river when it’s already flowing in the direction you want it to.

1 Comment

  • 1. Equality On Trial »&hellip  |  March 7, 2013 at 11:28 am

    […] advocates have been pressuring President Obama to weigh in on the Prop 8 case ever since the Supreme Court agreed to consider the […]

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